OUTIA'VRY   0?  WAR 


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OUTLAWRY  of  WAR 

SALMON  O.  LEVINSON 


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December  25,  192 1 

UNIVERSITY  of  CALIFORNM 
AT 

LOS  ANGELES 
LIBRARY 

ISSUED  BY  THE 
AMERICAN  COMMITTEE 

FOR  THE 

OUTLAWRY  OF  WAR 

76  WEST  MONROE  ST. 
CHICAGO,  ILL. 


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Introduction  >..u  -? 

War  between  nations  with  all  its  attendant  horrors 
has  always  been,  and  is  now,  perfectly  legal.  A  direct 
attack  by  one  nation  on  another,  no  matter  how  un- 
justified, is  a  legal  procedure.  Even  the  Kaiser  was  vio- 
lating no  known  law  by  declaring  war  in  1914.  What- 
ever value  wars  may  have  had  in  the  past,  these  last 
years  have  shown  modern  war  to  be  so  terrible  an  in- 
strument,  so  far  reaching  in  its  destruction  and  the  re- 
^  suits  of  that  destruction,  that  its  use  in  our  closely  inter- 
^  dependent  present-day  civilization  jeopardizes  the  very 
life  of  that  civilization. 


^ 

4 


The  appeal  to  force,  therefore,  between  nations  as 
between  individuals,  is,  under  existing  conditions,  intol- 
erable and  should  be  forever  outlawed.  This  was  the 
method  by  which  the  legal  war  between  individuals, 
called  duelling,  was  abolished — the  institution  was  made 
a  crime  and  punished  as  such.  The  nations  can  do  the 
^;  same  for  war,  and  establish  orderly  legal  procedure  to 
settle  their  disputes,  and  make  war  between  nations  a 
^  public  crime  under  an  international  code  of  law. 

I        In  any  reform  there  are  two  elements — the  principle 
^  and  the  methods  by  which  the  principle  is  made  effective. 
^  The  following  pages  contain  a  statement  of  the  principle 
and  certain  suggestions  as  to  how  it  can  be  carried  out. 
oX  They  have  been  carefully  prepared,  and  no  less  an  au- 
thority than  the  late  Senator  Knox  (Secretary  of  State 
under  President  Taft)  believed  them  to  be  practicable. 
But  like  all  questions  of  method  they  are  subject  to  sug- 
gestion and   modification.     Whether  they  shall   be  en- 
forced by  President  Harding's  Association  of  Nations, 
by  some  modified  form  of  the  present  League,  by  a  future 
Hague   Conference,   or   by   some   machinery   yet   to   be 


created, — does  not  impair  the  validity  of  the  principle 
of  the  outlawry  of  war. 

Salmon  O.  Levinson,  Chairman 

Mrs.  B.  F.  Langworthy,  Secretary 

Margaret  Dreier  Robins 

F.  R.  Moulton 

Raymond  Robins 

Edward  Osgood  Brown 

Albert  H.  Loeb 

Mrs.  William  S.  Hefferan 

Mrs.  A.  G.  Becker 

Joseph  M.  Artman 

Milton  F.  Goodman 

Mrs.  Russell  Tyson 

Committee. 


OUTLAWRY  OF  WAR 

"If  I  catch  the  conscience  of  America  we'll  lead  the 
world  to  outlaw  war." 

Senator  Harding,  September  4,    1920. 

"Let  us  give  of  our  influence  and  strength,  yea,  olF 
our  aspirations  and  convictions,  to  put  mankind  on  a 
higher  plane,  with  war's  distressing  and  depressing  trag- 
edies barred  from   the  stage  of  righteous  civilization." 

"There  must  be,  there  shall  be,  the  commanding  voice 
of  a  conscious  civilization  against  armed  warfare." 

President  Harding  at  Arlington, 
November  11,  1921. 

"The  call  is  not  of  the  United  States  of  America  alone, 
it  is  rather  the  spoken  word  of  a  war- weary  world, 
struggling  for  restoration,  hungering  and  thirsting  for 
better  relationship;  of  humanity  crying  for  relief  and 
craving  assurances  of  lasting  peace." 

"Contemplating  the  measureless  cost  of  war  and  the 
continuing  burden  of  armament,  all  thoughtful  peoplevS 
wish  for  real  limitations  of  armament  and  would  like 
war  outlawed." 

President  Harding  Keynote  Conference 
Address— November  12,  1921. 

"As  soon  as  world  conditions  permit  participation 
therein  by  all  peoples,  initiate  an  international  conference 
to  formulate  for  submission  to  the  nations  of  the  world  with 
a  view  to  adoption  by  them,  an  arrangement  providing 
for  the  codification  of  international  law,  the  establisment 

8 


of  a  court  of  international  justice  and  the  outlawry  of 
war.  This  arrangement  to  be  as  complete,  comprehensive 
and  compelling  as  shall  be  consistent  with  human  rights 
and  human  liberty  and  with  the  progress  of  civilization." 
P.  C.  Knox  Speech  in  U.  S.  Senate — May  5,  1920 

"Above  all,  making  sure  that  war  shall  henceforth 
be  declared  to  be  a  crime  punishable  by  the  law  of  na- 
tions." 

Lloyd   George,   Great  Britain's   Peace  Aims 

June  1918. 

"War  in  itself  and  for  itself  is  the  greatest  crime  in 
the  world  and  the  glory  of  victory  pursued  for  itself  is 
a  crime.  This  world  is  made  for  peace  and  for  work  in 
peace  time.  The  first  duty  is  to  work  for  our  people, 
not  to  fight." 

Marshal  Foch,  Detroit, 
November  7,  1921. 


Foreword 

By  Dr.  John  Dewey,  Columbia  University. 

There  are  at  least  some  persons  who  in  the  days  just 
before  and  after  the  Armistice  favored  a  League  of  Na- 
tions who  afterwards  changed  their  mind.  As  one  such 
person  I  should  like  to  mention  two  reasons  for  the  change, 
not  for  controversial  purposes  or  to  make  a  contrast 
which  Mr.  Levinson  has  himself  wisely  refrained  fr6m 
making,  but  for  the  sake  of  indicating  why  those  who 
favored  the  League  and  those  who  now  oppose  it  should 
unite  in  favoring  the  plan  for  a  world  court  based  upon 
world  codification  of  international  law  having  for  its  major 
premise  the  outlawry  of  war.  The  peoples  of  the  world 
are  not  yet  educated  enough  in  international  affairs  to 
guarantee  the  successful  workings  of  a  political  League, 
even  supposing  the  idea  is  inherently  desirable.  And  any 
present  scheme  is  bound  to  make  much  of  the  sanction 
of  physical  force  against  recalcitrant  nations.  In  that 
way,  it  continues  the  old  tradition  of  the  lawfulness  of 
war.  What  the  world  now  needs  is  enlightenment  and  a 
concentration  of  moral  forces.  The  plan  suggested  by 
Levinson  is  simple  and  understandable.  Like  all  really 
simple  and  intelligible  propositions,  it  goes  to  the  root 
of  the  situation.  Above  all  it  does  more  than  any  other 
plan  yet  proposed  to  provide  natural  and  orderly  agen- 
cies for  enlightening  the  peoples  regarding  disputes  among 
nations,  and  for  concentrating  all  the  moral  forces  of  the 
world  against  modern  war,  that  abomination  of  abomi- 
nations. If  we  cannot  trust  to  the  good-will  and  good 
faith  of  the  peoples  of  the  world  expressing  the  common 
purpose  and  judgment  through  law,  the  only  means  of 
expression  the  world  has  discovered  for  all  other  disputes, 
no  political  machinery  will  work  and  the  world  is  doomed 
to  war  and  doomed  by  war. 

7 


Foreword 

By  Judge  Edward  O.  Brown,  Chicago,  III. 

Dr.  Dewey's  foreword  to  Mr.  Levinson's  interesting 
and  significant  brochure  speaks  for  those  who  just  before 
and  after  the  Armistice  favored  a  League  of  Nations,  and 
subsequently  changed  their  minds.  I  have  been  in  favor 
of  the  League  of  Nations  from  the  day  that  the  plan  for 
it  took  form  in  1915, — and  have  not  changed  my  mind. 
It  is  not  my  purpose  to  be  controversial  any  more  than 
it  was  Dr.  Dewey's.  I  will  not  therefore  undertake  to 
give  reasons  for  my  belief  that  the  solidarity  of  civiliza- 
tion has  been  advanced  by  the  actual  definite  existence 
of  the  League  of  Nations  even  in  its  present  defective  and 
inefficient  form — a  form  which  must  continue  to  be  defec- 
tive and  inefficient  until  the  United  States  and  Germany 
are  both  members  of  it.  I  am  merely  stating  my  belief  and 
position  to  emphasize  my  opinion,  as  it  is  Dr.  Dewey's, 
that  there  is  no  reason  why  friends  a;nd  foes  of  the  League 
as  it  exists  or  as  it  may  be  amended  should  not  unite  in 
favoring  the  plan  which  Mr.  Levinson  has  so  forcefully 
outlined. 

It  seems  to  me  incredible  that  any  man  can  approve 
or  defend  war  as  a  method  of  settling  disputes  between 
races,  peoples  or  nations.  If  he  does  so,  he  is  preaching  the 
devil's  doctrine.  Defense  of  ourselves  and  of  others  at- 
tacked aggressively  and  wantonly  may  compel  resort  to 
any  arms  that  may  be  available,  and  even  the  virtues 
which  may  show  themselves  in  such  a  defensive  war 
are  the  product  of  prior  peaceful  times,  while  the  vices 
which  become  rampant  and  widespread  during  and  after 
it  are  developed  and  aggravated  by  the  war  itself. 

Attempts  to  render  war  less  cruel  or  savage  by  formu- 
lating so-called    "laws  of  war"  and  to  provide  for  its 


conduct  humanely  are  food  to  the  gods  for  laughter!    You 
cannot  feed  tigers  on  oranges. 

But  to  formulate  and  codify  laws,  rules  and  decisions 
which  shall  "outlaw"  aggressive  war  and  declare  it  to 
be  the  chief  of  crimes  and  thereby  prevent  it,  ought  not 
to  be  a  hopeless  endeavor. 

Such  a  noble  effort  Mr.  Levinson  is  trying  to  foster. 
The  heart  of  his  plan,  as  I  view  it,  is  the  codification  of 
International  Law,  by  leading  jurists  of  the  world,  with 
all  civilized  nations  participating,  and  the  establishment 
of  a  permanent  International  Court  with  real  jurisdiction 
to  take  cognizance  of  offenses  against  such  a  Code,  and 
to  hear  and  determine  purely  international  disputes. 

Whatever  may  be  the  merits  or  defects  of  the  Present 
League  of  Nations  neither  that  nor  any  other  association 
of  nations  that  takes  its  place  can  be  of  its  proper  benefit 
to  the  world  without  such  a  codification  and  such  a  Court. 


Foreword 

By  Col.  Raymond  Robins,  Chicago,  111. 

The  people  of  the  world  are  ready  and  eager  for  the 
next  step  in  the  slow  advance  from  savagery  toward  inter- 
national civilization.  They  believe  that  the  boundless 
sacrifices  and  sufferings  of  the  Great  War  should  have 
some  milestone  of  progress  in  the  moral  code  of  mankind. 

They  want  war  unmasked  and  declared  in  inter- 
national law  to  be  what  it  is  in  fact,  the  supreme  enemy 
of  the  human  race. 

They  want  the  conscience  of  men  everywhere  to 
think  of  war,  not  as  an  honorable  profession,  not  as  the 
path  to  glory  and  power,  but  as  the  arch  murderer  of  the 
youth  of  the  race — the  master  assassin  of  motherhood 
and  the  home. 

They  want  war  revealed  as  the  paralysis  of  produc- 
tion and  the  suicide  of  commerce,  the  betrayal  of  brother- 
hood, the  poison  in  the  cup  of  good-will  between  the 
nations  of  the  earth,  the  forerunner  of  pestilence  and 
famine,  spreading  ruin  and  desolation  alike  upon  the 
victors  and  the  vanquished  and  crucifying  Christ  afresh 
on  every  battlefield. 

They  want  war  outlawed  as  a  crime  against  the  law 
of  nations  and  the  life  of  humanity. 

They  want  militarists  branded  as  super  felons  among 
the  criminals  of  the  earth. 

Let  the  first  step  toward  the  outlawry  of  war  be  taken 
by  the  conference  now  at  Washington,  and  it  will  in  this 
act  alone,  mark  an  epoch  in  the  life  of  the  race  and  lift 
mankind  to  new  levels  of  moral  understanding  and  power. 
This  step  would  begin  the  liberation  of  the  people  from 
the  age  long  thraldom  of  the  Sword  and  prove  that  the 
countless  dead  on  all  the  battlefields  of  the  Great  War 
have  not  died  in  vain. 

10 


PLAN  TO  OUTLAW  WAR* 

A  Conference  of  all  civilized  nations  to  be  called  for 
the  creation  and  codification  of  international  law;  the 
code  to  contain,  among  other  things,  the  following  provi- 
sions, with  which  none  of  the  other  provisions  of  the  code 
shall  be  in  conflict: 

1.  The  further  use  of  war  as  an  institution  for  th'e 
settlement  of  international  disputes  shall  be  abolished. 

2.  War  between  nations  shall  be  declared  to  be  a 
public  crime,  punishable  by  the  law  of  nations. 

3.  War  shall  be  defined  in  the  code  and  the  right  of  de- 
fense against  actual  or  imminent  attack  shall  be  preserved. 

4.  All  annexations,  exactions  or  seizures,  by  force, 
duress  or  fraud,  shall  be  null  and  void. 

5.  An  international  court  with  affirmative  jurisdiction 
over  purely  international  disputes  shall  be  created 
modelled  as  nearly  as  may  be  on  the  jurisdiction  of  the 
United  States  Supreme  Court  over  controversies  between 
states.  All  purely  international  disputes  as  defined  by 
the  code  shall  be  decided  and  settled  by  the  international 
court  sitting  as  a  judicial  body,  which  shall  be  given  juris- 
diction over  all  parties  to  a  dispute  upon  the  petition  of 
any  party  to  the  dispute  or  of  any  signatory  nation. 

6.  All  nations  shall  agree  to  abide  and  be  bound  by 
and  in  good  faith  to  carry  out  the  orders,  decrees  and 
decisions  of  such  Court. 

7.  One  nation  cannot  summon  another  before  the 
International  Court  except  in  respect  to  a  matter  of 
international  and  common  concern  to  the  contending 
nations,  and  the  jurisdiction  of  the  court  shall  not  extend 
to  matters  of  governmental,  domestic  or  protective  policy 

*Formulmt«<l  In  1919  by  the  Ut«  SeoAtor  K&oi  tod  the  author. 

U 


unless  one  of  the  disputing  parties  has  by  treaty  or  other- 
wise given  another  country  a  claim  that  involves  these 
subjects.  The  classes  of  disputes  excluded  from  the  juris- 
diction of  the  international  court  should  be  specifically 
enumerated  in  the  code  and  not  be  left  open  to  the  flexible 
and  dangerous  distinction  between  justiciable  and  non- 
justiciable controversies. 

8.  The  court  should  sit  in  the  hemisphere  of  the  contend- 
ing nations;  and  if  the  disputants  live  in  opposite  hem- 
ispheres, then  in  the  hemisphere  of  the  defendant  nation. 

9.  National  armaments  to  be  reduced  to  the  lowest 
point  consistent  with  domestic  safety  and  with  the  necessi- 
ties of  international  requirements. 

10.  Abolition  of  professional  soldiery  and  the  substi- 
tution of  a  potential  army  through  citizen  soldiery  on 
the  Swiss  model. 

11.  All  nations  shall  make  public  report  once  each 
year  setting  forth  fully  their  military  and  naval  arma- 
ments, structural  and  chemical.  These  reports  to  be 
verified  by  authorized  committees. 

12.  The  doctrines  of  military  necessity,  retaliation 
and  reprisal  which  are  open  to  such  flagrant  and  abhorrent 
abuse,  shall  be  eliminated. 


An  international  arrangement  based  on  the  foregoing 
would  not  impair  our  independence  or  our  sovereignty; 
it  would  relieve  the  world  of  the  destructive  incubus  of 
war;  it  would  civilize  international  relations  by  the  sub- 
stitution of  real  law  and  a  real  court  for  the  bloody  de- 
cisions of  war;  it  would  preserve  the  Monroe  Doctrine, 
our  tariff  and  revenue  policies,  our  right  to  repel  invasion, 
our  right  to  expel  aliens  and  all  other  domestic  and  pro- 
tective policies  (the  other  nations  to  enjoy  corresponding 

M 


rights  and  policies);  it  would  eliminate  aggression,  duress, 
fraud  and  secret  diplomacy  in  international  dealings;  it 
would  rob  the  profession  of  killing  of  its  glory  and  prestige, 
and  it  would  outlaw  war  by  making  it  a  public  crime  pun- 
ishable by  the  law  of  nations. 


It 


ANALYSIS  OF  PLAN 

L  Civilization  has  been  marked  in  its  upward  trend 
out  of  savagery  into  its  present  condition  by  the  evolution 
of  law  and  courts  to  supplant  methods  of  violence  and 
force. 

2.  Processes  of  courts  and  law  have  been  adopted 
in  all  human  relations,  from  individuals  and  corporations 
to  states  within  a  nation,  except  in  the  international 
field.  Here  disputes  between  nations  can  be  compulsorily 
settled  only  by  force  of  arms.  There  is  no  authoritative 
law  or  court.  Nations  remain  in  this  regard  in  a  state 
of  nature. 

3.  Disputes  are  human  and  inevitable  whether  be- 
tween individuals  or  between  nations.  War  is  inhuman 
and  is  inevitable  only  by  tradition. 

4.  There  are  but  two  ways  of  compelling  settlement 
of  disputes  whether  intranational  or  international  in 
character;  one  is  by  force  and  the  other  is  by  law.  In 
international  controversies  the  resort  to  force  has  always 
been  open. 

5.  War  is  an  institution.  An  institution  is  a  custom 
not  contrary  to  law  established  over  long  periods  among 
peoples  and  races.  The  church  is  an  institution;  marriage 
is  an  institution;  slavery  was  an  institution. 

6.  All  wars  between  nations  are  legal.  War  has  never 
been  made  unlawful  by  any  convention  or  treaty  or  so- 
called  international  law  since  the  time  of  Adam.  It  is  at 
once  the  greatest  and  most  lawful  "crime"  in  the  world. 

7.  For  example,  suppose  the  Kaiser  had  simply  de- 
clared in  1914  that  Germany's  desire  for  a  place  in  the 
sun  meant  he  would  take  the  whole  of  France  and  Bel- 
gium, and  thereupon  declared  war  on  both  those  coun- 


tries: — there  is  nothing  in  any  work  on  international  law 
or  in  any  treaty  or  convention  that  would  have  made 
that  pronouncement  of  war  illegal.  Wars  may  be  wicked 
and  cruel  but  not  unlawful.  "The  King  can  do  no  wrong." 

8.  In  dealing  with  any  other  form  of  evil  our  first 
impulse  is  to  have  the  legislature  or  congress  pass  a  law 
making  the  practice  illegal  and  criminal.  If  that  is  the 
way  to  deal  with  ordinary  grievances,  why  not  try  the 
beaten  path  with  the  greatest  of  all  wrongs?  We  want 
not  ''laws  of  war"  but  "laws  against  war"  as  we  have 
laws  against  murder  and  burglary.  The  recent  revival 
at  Washington  of  proposals  for  "rules"  regulating  or 
prohibiting  the  use  of  poison  gases  and  submarines  seems 
like  sheer  mockery  so  long  as  war  itself  remains  legal. 
Besides,  the  last  war  certainly  demonstrated  the  futility 
of  relying  on  "rules  of  humanized  warfare." 

9.  The  farcical  exhibition  at  Versailles  of  the  attempt 
to  indict  the  Kaiser  for  the  "crime"  of  starting  the  war 
emphasizes  this  point.  There  never  was  a  law  against 
war  upon  which  to  base  such  an  indictment.  And  strange 
to  say,  the  nations,  thwarted  by  this  terrible  defect  in 
international  law,  did  not  adopt  a  convention,  enact  a 
law  or  take  any  steps  at  Versailles  to  make  war  a  crime 
and  thus  lay  the  foundation  for  the  indictment  of  the 
"next  Kaiser". 

10.  The  reduction  of  armaments  is  most  valuable  as 
an  economic  remedy  and  a  splendid  step  in  the  right 
direction.  The  people  rightly  demand  and  will  have  it. 
But  that  does  not  lay  the  axe  to  the  root.  Suppose  all 
countries  should  reduce  their  aramments  to  what  they 
were  say  in  1870  or  in  1850  or  in  1800 — was  the  world  not 
cursed  with  war  then?  Indeed,  the  United  States  had  very 
small  armaments  in  1917  but  had  the  intri^isic  power  to 
create  large  ones  by  1918.  The  logic  of  disarmament, 
according  to  General   Hugh  S.  Johnson,   in   a  series  of 


brilliant  articles  in  the  New  York  World,  is  as  follows: 
"Finally  it  must  be  recognized  that  no  possible  project 
of  disarmament  can  create  a  condition  of  equilibrium  as 
between  weak  and  powerful  nations.  ...  A  disproportion- 
ate condition  would  remain  if  all  nations  would  completely 
disarm  just  as  it  would  remain  if  all  would  arm  to  the 
limit  of  their  resource.  .  .  .  The  justification  of  this  is  in 
part  the  principle  that  a  giant  with  a  sword  is  little,  if 
any,  more  dangerous  to  a  Lilliputian  than  a  giant  with 
a  club." 

We  want  not  fewer  wars  but  no  wars;  not  less  destruc- 
tive wars  but  no  wars  at  all.  Limitation  of  armaments  is 
not  enough.  In  the  crisp  words  of  President  Harding, 
the  crying  need  is:  "Less  of  armament  and  none  of  war." 

n.  The  closest  historical  analogy  to  war  is  the  duel, 
"duellum"  and  "bellum"  both  originally  meaning  war. 
The  duel  had  its  origin  in  Germany  and  now  survives 
to  some  extent  there  and  in  France  and  Italy.  In  England 
and  in  this  country  it  passed  muster  for  centuries,  re- 
maining lawful  because  of  the  "honor"  element  which  it 
was  supposed  to  uphold.  It  was  as  late  as  1850  before 
the  duel  was  pronounced  murder  in  the  last  of  our  states 
and  thus  outlawed.  The  practice  of  duelling  is  now 
extinct  because  it  is  plain  murder  under  our  laws.  Ques- 
tions of  "honor"  were  as  fallacious  as  they  were  bountiful 
in  the  institution  of  duelling  and  as  they  are  still  in  the 
institution  of  war.  Man  has  not  become  a  mollycoddle 
because  he  cannot  resent  every  supposed  affront  to  his 
"honor"  by  a  sword-thrust  or  a  bullet.  We  have  nobly 
abolished  the  institutions  of  duelling  and  slavery;  why 
not  abolish  the  institution  of  war? 

12.  In  creating  a  real  international  court,  the  subtle 
and  mischievous  distinction  between  justiciable  (triable) 
and  non-justiciable  (not  triable)  controversies  must  not 
be  permitted  to  defeat  its  jurisdiction.     If  it  lies  in  the 


power  of  a  nation  itself  to  say  that  a  cause  is  non-justici- 
able and  that  therefore  the  court  cannot  take  jurisdiction 
over  it,  all  judicial  power  crumbles.  It  is  not  only  easy 
for  chancellors  or  premiers  to  give  a  dispute  a  non-justi- 
ciable turn  but,  as  a  matter  of  fact,  practically  all  the 
wars  in  the  past  hundred  and  fifty  years  have  started 
from  non-justiciable  causes.  That  was  the  case  in  the  late 
war.  The  word  "non-justiciable"  is  but  a  new  edition 
of  the  old  phrase  *  national  honor  and  vital  interests."  , 
While  it  is  true  that  a  nation's  honor  and  its  vital  inter- 
ests should  be  safeguarded,  this  exception  is  used  not  to 
safeguard  these  things  but  to  justify  and  fortify  war.  The 
new  code  must  itself  state  what  causes  are  within  the 
jurisdiction  of  the  court  and  what  are  not,  and  must  now 
allow  an  individual  country'  to  decide  the  matter  for  the 
court.  The  proposed  plan  covers  this  by  excluding  from 
the  jurisdiction  of  the  court  all  domestic  and  protective 
questions  (like  revenues,  immigration,  Monroe  Doctrine, 
etc.)  which  shall  be  agreed  upon  for  all  countries  and 
enumerated  in  the  code.  In  this  way  the  jurisdiction  of 
the  court  over  all  purely  international  disputes  can  be 
protected  and  maintained. 

13.  The  proposition  that  the  causes  of  things  must 
be  first  removed,  e.  g.  the  causes  of  war,  the  causes  of 
armament,  etc.,  is  fallacious  and  plays  into  the  hands 
of  militarists.  However  commendable  it  is  to  solve  the 
problems  of  evil  and  injustice  in  the  world  great  reforms 
cannot  await  such  slow  and  indefinite  processes.  Thus: 
Suppose  an  attempt  had  been  made  to  remove  the  causes 
of  duelling  before  outlawing  it;  would  the  day  before 
judgment  day  have  seen  it  abolished?  No.  The  causes  of 
duelling  were  as  various  as  human  motives.  The  causes 
of  war  or  of  armament  or  of  duelling  (or  of  disputes, 
which  are  basic  to  the  foregoing)  will  be  removed  when 
the  era  of  the  brotherhood  of  man  is  ushered  in  and  not 
before. 


J7 


It  is  claimed  by  some  that  the  underlying  causes  of 
war  are  existing  trade  barriers  and  that  if  we  remove 
these  we  will  eliminate  war.  Others  insist  that  religious 
and  race  hatreds  and  prejudices  cause  war.  But  these 
trade  barriers  and  hatreds  merely  beget  disputes  which 
the  bloody  "court"  of  war  settles.  It  is  this  legal  device 
of  violence  that  must  be  removed.  For  the  remedy 
of  war  has  now  become  always  worse  than  the  dis- 
ease. We  must  continue  more  and  more  to  put  civili- 
zation under  the  control  of  law  and  courts  and  not  wait 
until  we  have  removed  causes  that  are  buried  perhaps 
irremovably  in  the  breast  of  human  nature. 

14.  From  the  foregoing  it  follows  that  in  order  to 
outlaw  war,  it  is  necessary  to  codify  international  law,  and 
one  of  the  first  articles  of  the  code  should  abolish  the 
institution  of  war  for  the  settlement  of  disputes  between 
nations,  by  making  it  illegal  and  criminal.  A  real  court 
should  be  created  with  power  judicially  to  hear  and  de- 
termine all  international  controversies  as  enumerated  in 
the  code. 

15.  The  code  should  be  prepared  by  the  leading  states- 
men and  jurists  of  the  world  with  all  civilized  nations 
represented  in  an  International  Conference  called  for  that 
purpose.  It  may  take  two  years  to  prepare  such  a  code. 
Senator  Knox  thought  it  would  take  five  years.  There- 
fore, a  commitment  in  principle  to  a  plan  for  the  codifi- 
cation of  international  law,  the  creation  of  a  court  with 
affirmative  specified  jurisdiction  and  the  criminal  out- 
lawry of  war  is  all  that  is  necessary  at  this  time.  The 
Code  Conference  will  do  the  rest. 

16.  The  expense  of  securing  and  liberally  paying  for 
the  services  of  the  best  brains  of  the  world  for  the  work 
of  codification,  and  also  giving  each  member  of  the  Con- 
ference a  life  pension,  will  not  exceed  one-one  hundredth 
of  one  per  cent  of  the  cost  of  the  last  war,  or  thirty 
million  dollars. 


SI 


17.  It  remains  to  consider  the  obstacles  and  objections 
to  such  a  program.    They  seem  to  be  as  follows: 

(a)  The  love  of  power  that  resides  in  rulers  and  their 
ministers  which  disincline  them  to  lose  their  greatest 
weapon.  This,  of  course,  applies  mainly  to  the  large 
nations,  as  most  of  the  small  nations  have  been  willing  to 
do  away  with  war  for  many  years.  At  both  Hague  Con- 
ferences the  small  nations  tried  to  have  universal  obliga- 
tory arbitration  adopted,  but  the  big  nations  always 
defeated  it.  The  first  obstacle  thus  applies  to  the  large 
nations  and  usually  takes  on  this  word-formula:  'The 
world  is  not  yet  ready  for  so  great  a  step".  The  United 
States, however,  through  Mr.Choate,  at  the  second  Hague 
Conference,  took  a  leading  stand  in  favor  of  universal 
arbitration.  It  is  the  purpose  of  the  big  nations,  as  shown 
by  Article  XV' of  the  League  of  Nations,  to  refer  to  arbi- 
tration only  such  disputes  as  they  see  fit,  reserving  to 
themselves  the  power  of  their  armaments  to  decide  all 
others.  This  is  why  Article  XIV  of  the  League  creates  an 
internationalcourt  without  any  inherent  jurisdiction  at  all. 
It  is  purely  a  consent  court  with  the  right  of  consent  to 
jurisdiction  to  be  given  or  withheld  at  the  pleasure  of 
any  nation  after  the  dispute  has  arisen.  In  short,  it  is 
no  court  at  all. 

(b)  Another  objection  is  that  if  the  proposed  inter- 
national court  is  given  affirmative  jurisdiction  to  hear  and 
determine  disputes  (which  it  has  under  the  outlawry 
proposal)  it  must  have  the  power  to  enforce  its  decrees. 
Particularly  to  a  lawyer  this  seems  at  first  to  be  necessary 
to  the  dignity  and  respect  of  any  court.  The  international 
court  must  of  course  be  given  adequate  power  to  enforce 
its  judgments  against  all  war  criminals.  The  precise 
manner  in  which  this  may  best  be  accomplished  would  be 
one  of  the  important  functions  of  the  Codification  Con- 
ference.   But  as  to  the  civil  decrees  of  the  court  a  reading 

It 


of  the  history  of  our  constitutional  debates  will  probably 
be  persuasive  if  not  convincing  that  force  is  not  indispens- 
able. When  it  was  proposed  to  give  the  United  States 
Supreme  Court  original  jurisdiction  over  controversies 
between  states,  it  was  contended  that  the  court  should 
have  the  power  to  enforce  its  judgments  in  sudi  cases  as 
in  all  others.  Madison,  however,  took  the  ground  that 
to  do  so  would  be  to  destroy  the  sovereignty  of  the  in- 
dividual state,  and  wowld  create  anarchy,  revolt  and 
rebellion.  He  contended  it  was  not  proper  to  appoint  a 
receiver  for  a  state  and  that  reliance  must  be  placed  on 
the  consent  of  the  states  to  the  jurisdiction  of  the  Supreme 
Court  and  on  their  agreement  to  abide  by  its  decisions. 
As  great  an  authority  as  the  late  Senator  Knox  believed 
this  to  be  a  practical  working  model  for  the  World  Court. 
However,  this  question  of  enforcement  is  one  to  be 
settled  by  the  learned  delegates  at  the  convention 
for  the  codification  of  international  law.  Much  may  be 
said  in  favor  of  an  international  force,  or  a  force  contri- 
buted to  by  various  nations  to  aid  in  the  execution  of 
the  international  court's  civil  decrees  as  well  as  its 
criminal  judgments.  Whichever  way  this  may  be  decided, 
it  will  not  affect  the  reason  for  outlawing  war. 

It  is  probable  that  revolution  cannot  be  altogether 
prevented.  For  if  a  nation  is  strong  and  mad  enough  to 
defy  the  world,  either  generally  or  in  resistance  to  a 
decree  of  an  international  court,  that  is  a  risk  that  must 
be  provided  against,  because  it  will  always  be  inherent 
in  any  program.  But  revolutions,  as  we  ordinarily  view 
them,  are  domestic  in  character  and  therefore  not  within 
the  scope  of  the  theory  of  outlawry  which  deals  only  with 
controversies  between  nations.  Any  form  of  domestic 
violence  whether  arising  through  revolution,  riots  or 
otherwise,  is  subject  to  the  control  of  intranational  ma- 
chinery and  amenable  to  domestic  law. 

20 


(c)  i\nother  objection  is  that  some  nation  might  plan 
to  overrun  the  world  while  other  nations  were  sleeping. 
The  program  of  outlawry  does  not  call  for  an  abatement 
of  armaments  beyond  the  point  of  safety.  Reduction  of 
armaments  is  a  world-wide  economic  necessity  as  well  as 
a  profound  move  toward  peace;  but  the  question  of  out- 
lawry is  one  that  can  be  considered  entirely  apart  from 
the  question  of  the  size  of  the  armaments  necessary  for 
each  nation  to  protect  itself  against  possible  bad  faith  dr 
disobedience  to  law  or  violation  of  contract  or  treaty 
rights.  But  when  war  becomes  a  crime  armaments  will 
subside. 

(d)  Still  another  objection  is  that  outlawry  of  war 
cannot  be  established  because  of  the  essential  difference 
between  disputes  among  individuals  and  disputes  between 
nations.  Here,  of  course,  the  conception  of  sovereignty 
interposes  itself.  There  has  been  considerable  confusion 
of  the  two  words  "sovereignty"  and  "independence". 
A  nation's  independence  must  be  maintained  at  all  haz- 
ards; its  sovereignty  is  "invaded"  every  time  it  makes  a 
treaty  or  contract  or  puts  a  check  upon  its  original  un- 
limited power  in  any  respect.  Essentially,  international 
disputes  are  the  same  as  individual  disputes  in  that  they 
legitimately  involve  property  or  property  rights  and 
questions  of  liberty.  Take  the  case  of  Alsace-Lorraine: 
After  all,  through  the  centuries,  it  was  a  controversy  over 
real  estate;  a  large  amount  of  real  estate  to  be  sure,  and 
involving,  incidentally,  a  question  of  national  allegiances; 
but  inherently  a  question  of  title  to  real  estate.  In  con- 
sidering outlawry  of  war  we  must  assume  that  disputes 
between  nations  are  legitimate.  If  they  are  legitimate 
there  ought  to  be  a  court  that  has  the  power  to  hear  and 
determine  such  disputes  under  a  code  of  law  for  the  es- 
tablishment of  justice.  If  the  controversies  are  illegiti- 
mate, that  is,  covers  for  conquest,  they  should  not  be 
allowed  to  provoke  war  and  to  spread  destruction  and 

ti 


death.  After  all,  disputes  will  arise  and  they  must  get 
settled,  if  not  by  law  and  courts,  then  by  violence  and  war. 
A  sovereign  nation  that  would  set  itself  up  above  all 
the  laws  of  justice  in  its  dealings  with  other  nations  is 
unworthy  to  retain  its  sovereignty. 

In  any  case,  outlawry  will  reduce  war  to  the  level  of 
piracy  and  duelling,  and  will  prevent  the  education  of 
another  people  to  the  blood  and  iron  standard  of  "Deutsch- 
land  Uber  Alles." 

In  connection  with  the  foregoing  obstacles  and  ob- 
jections it  should  be  borne  in  mind: 

(a)  That  the  international  code  when  prepared  must 
be  sumitted  to  each  civilized  nation  and  be  by  it  approved. 
As  each  of  such  nations  will  participate  in  the  preparation 
of  the  code  general  harmony  may  be  expected.  Besides 
it  is  also  proposed  that  every  five  years  the  code  may  be 
amended  and  brought  down  to  date,  so  that  freshly 
discovered  points  may  be  covered. 

(b)  That  the  abolition  of  the  institution  of  war  by 
outlawry  will  tend  to  crystallize  international  public 
opinion  in  favor  of  peace,  and  to  the  branding  of  mili- 
tarists as  criminals.  And  if  the  nations  of  the  world  find 
that  they  are  civilized  enough  to  live  under  the  reign  of 
law  in  th^r  international  dealings,  the  economic  salvage 
from  the  obsolete  "court"  of  war  will  be  colossal. 

(c)  That  each  nation  shall  disclose  once  a  year  the 
full  nature  of  its  armament,  structural  and  chemical, 
new  and  old,  and  that  these  figures  shall  be  verified  by 
international  committees.  In  this  way  substantially 
accurate  knowledge  of  the  preparation  of  each  nation 
in  the  line  of  armament  will  be  given  to  the  others  and 
secret  preparation  made  abortive. 

18.  Outlawry  of  war  is  not  intended  as  a  panacea 
nor  does  it  underwrite  a  millenium.    It  seeks  to  apply  the 


tried  and  effective  methods  of  civilization  to  international 
relations.  It  seeks  to  put  a  final  end  to  the  theory  of 
force  and  violence  for  the  determination  of  right  in  any 
human  dispute.  It  does  not  claim  that  it  will  usher  in 
the  era  of  brotherly  love  nor  create  a  United  States  of 
the  World.  It  merely  seeks  to  abolish  the  worst  form  of 
violence  and  crime  existing  among  men, 

Salmon  O.  Levinson 
Chicago,  111.  . 


1()4<;83 


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